It was just before 9 p.m. on December 18, 2008, and Eric Roth, a litigation partner at Wachtell, Lipton, Rosen & Katz, was composing “talking points” for Ken Lewis to use in discussions with his board of directors the next day.
Roth’s memo–part of documents subpoenaed by an investigating Congressional committee–detailed point by point why Bank of America Corporation should not invoke an escape clause in the bank’s merger agreement with Merrill Lynch & Co., Inc. For one thing, Roth noted, the case would end up in a Delaware court, and “no Delaware court has ever found that a MAC [material adverse change] occurred permitting an acquiror to terminate a merger agreement.”
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